I think Megan McArdle is being naive about the tort system in this country when she writes

So Junior Seau's family is suing the NFL over head injuries, which lead to chronic brain damage, and possibly his suicide.

...

But this lawsuit strikes me as pretty out there. Junior Seau can't possibly have been unaware that football caused head injuries. Nor even that multiple concussions are probably bad for you. Note how many people are still playing, even though we now know this all too well.

Really? I know of cases where people have successfully sued for drownings that occurred within feet of a no swimming sign. I could easily ask if there are really people unaware that water can cause drownings. Any sense of individual responsibility has been stripped from the tort system, such that it has become a way for folks who had bad outcomes of some sort to cash in from deeper pockets, irrespective of any reasonable sense of justice.

The NFL knows this and is clearly running scared. How do we know? Just look at Saints coach Sean Payton, who just went back to work after a one year suspension, a historically really large penalty for a coach. He was accused of tangential association with a bounty system players and coaches had in place for great plays that may also have been a bounty system for injuring opposing players. The NFL knows this goes on all the time, but must now prepare for the day they are in court getting sued for having an unsafe work environment. They do not want a case based on negligence to be made far worse by accusations that the league was actively promoting behavior that created injuries. So they threw the book at him. The other folks who were suspended threatened the NFL with suits for all sorts of due process errors, but the NFL didn't care. They can survive a judgement on an unjustified suspension of one or two players. They cannot survive a judgement on causing hundreds to have brain damage.

Quoting from Walter Olson, who spends most of his time studying the tort system in this country:

if subjected to the same injury liability rules that American courts apply to other businesses, organized football is unlikely to survive.

16 Comments

Add to that the number of players currently and recently retired who have been taking performance enhancing substances for the past 15 years (which will be shown should have been “banned” by the league) who start
dying off at age 45, and you’ve got an enormous litigation problem.

herdgadfly:

This is the beginning of a huge price increase for American football games, NFL and college - but America's current favorite pastime is not going away. The politicians attempted to outlaw booze and failed, cigarette lawsuits made lawyers rich and taxpayers poor but we can still smoke 'em if we can afford 'em. Now the movement to legalize weed is upon us and that that will likely succeed as well.

It is the politically correct thing for judges to rule against players who understand the risk of playing football. If we can kill babies, we can kill football players - murder has been the law of the land for 40 years.

LarryGross:

sports in the USA is what we as a society make it and want it to be - and it's not a pretty picture in many respects. One of the fastest growing "sports" these days are cage fights. Think about what's going on in the head of someone who is "enjoying" watching a cage fight.

Was there really "shock" when it was found out that bounties were being paid in the NFL to take out someone?

really? We've been watching this for decades.. right? Only now, the wrist-wringing begins?

The NFL is not where the NFL dies. It dies at the High School level. There have already been one or two successful suits at this level. Given time a move will be afoot to demonize participation at the HS level. With that seed stock of players missing, college ball, then NFL will just fade out for lack of people trained to play the game.

LarryGross:

Why is it such a shock that when you teach kids (and adults) to run at top speed towards each other with the intent of hitting them that damage - temporary and permanent is a possible consequence? Most all of us are a party to this because we cheer on the teams ..buy their brand stuff, idolize the starts, etc.

the rest of the world calls soccer "football"... right? Soccer is, by far, a safer sports, certainly for kids to be engaging in.

I don't see this as the NFL being doomed but the loss of innocence that contact sports don't cause permanent injuries sometimes.

and I think that it won't kill the NFL but a new contract for employment will require a signature to a piece of paper that fully discloses the fact that permanent injuries and death can result and that the person signing such a paper fully and knowingly assumes that risk as a condition of playing.

You can't do that in high school or even college without parents signing and it will be interesting to see how
many parents will sign a fully disclosive liability form for their kids.

In short, it may well end up an adult sport like boxing or cage fighting where you are fully informed and willingly assume the risk.

Dimitri Mariutto:

" I know of cases where people have successfully sued for drownings that occurred within feet of a no swimming sign." Yep, ask McDonald's if the coffee is hot or not. Next thing will be former boxers suing because of head injuries/brain damage.

marque2:

What they should do is limit helmets and padding. I believe that the padding has the opposite of the intended effect. No-one would run as fast as they can to whack another opponent with their head if there was little padding. The uniform gives a false sense of confidence to the players and the coaches.

MNHawk:

NL7:

The tort system has essentially become a rough-justice insurance system. It might make more sense at this point to replace most of the tort system with some sort of generalized insurance, following in the footsteps of the workers comp system. If companies are going to be forced to carry insurance even in cases without real negligence or fault, then we might as well streamline the process to eliminate some of the opportunities for gaming by lawyers.

Of course, ideally we could pass a law requiring that all courts recognize waivers as effective. Right now waivers are mostly ineffective, but if people had the right to waive insurance for risks, we could avoid tort insanity and burdensome premiums.

John David Galt:

Maybe this will lead to some reform of the tort system. The public won't tolerate football being shut down; we'd pay to watch gladiator matches if anyone were willing to be in them (and MMA isn't that far from it).

Notice how the hockey owners have screwed themselves over, twice now, by insisting to the point of locking out the players that the players accept "kinder, gentler" rules for hockey. Idiots!

Pat:

It's odd that one of the reasons given for the extraordinary salaries that people like Junior Seau receive is that they are playing a dangerous game that can end their career at any moment and that the time that they have to earn is so short, not to mention that their life spans are often shorter as a result of all the physical abuse. (This, is, of course combined with the fact that the economics of the game, especially stars like Seau, make it possible and even reasonable to pay them millions during their careers.) Now, to have an argument that basically says that he voluntarily took the risk to obtain the reward (millions in salary, justified by the above) and that risk was actually too risky... It's a very strange argument. Would Junior have taken the same risks with his health and well being if his salary had been the same as a teacher's salary? Or the average insurance salesman? Or even the owner of a small company? Supposedly the risk to his health was part of the reason his salary was so high. He might have done it for less, or maybe not. But, either way, to claim the game put him at a risk that was unknown to him is ridiculous. Junior, and his family knew the risks and enjoyed the rewards. It's only an insane society where one can sue for millions because someone who made millions taking a known risk was harmed in the course of reaping the rewards.

nehemiah:

Actually the incidence of head injuries in youth soccer is higher than youth football. All the kids want to "head" the ball, but end up heading each other. No head protection, just head on head collision. (study of youth sports injuries conducted by the Mayo Clinic).

nehemiah:

I was a pretty good flag football player in the service. But even with flag there were some collisions that caused serious injury.

If a football player is fully informed and cashes his large paycheck I say move on. The real problem for the NFL is the Nanny State mentality. Those progressive do gooders who want to flex their coercive muscles just to show they can. How can we tolerate such violence to people with or without their consent? If you can't drink a Big Gulp in NYC you shouldn't be able to participate in a violent sport.

LarryGross:

Naw... if you told two 100lb 12 yrs old to run as fast as they could towards each other with the intent of knocking the other one down - we'd see the same kind of damage.

the basic truth here is that the game of football - like boxing and cage fighting - the intent is to physically best your opponent and there are lots of ways of doing this such that permanent damage can result.

you can change rules ... to make the most obvious techniques illegal but the basic contest itself is inherently about using physical violence to best your opponent.

we knew this all along. we know it now. The question is do we accept the reality of it or do we still pretend that it's something else?